Slip-and-fall cases tough to make in Michigan courts

By ED WHITE, Associated Press

Thursday, December 27, 2012

DETROIT (AP) — Francisco Garces stopped at a grocery store in western Michigan but left with injuries after falling in the icy parking lot. When he sued, he didn’t get sympathy from the state appeals court: The judges said he could have shopped elsewhere.

Slip-and-fall lawsuits, once a staple for injury attorneys, have become extremely difficult in Michigan courts, especially after another strict standard was set last summer by the state Supreme Court. Feet flying in the air because of water, ice or snow? Case dismissed — unless someone absolutely can’t avoid the hazard.

Lawyers acknowledge that not every lawsuit is going to be a winner when someone seeks money for lost wages or medical bills. But the decision should be left to a jury at trial, they say, not a judge or a higher court.

“I have to turn cases down every single day” because of the tougher threshold, said lawyer Mark Bernstein, whose family’s Detroit-area firm is widely known because of its “1-800-CALL-SAM” TV ads. “These aren’t trespassers who got hurt or somebody who climbed over a fence. When you invite a person onto your property, you owe them a responsibility that your property is safe.”

He said slip-and-fall cases tied to weather now represent just 2 percent of the firm’s work, compared to 20 percent in the 1990s.

The number of slip-and-fall cases is hard to come by; Michigan court statistics don’t break down lawsuits that way. But Nelson Miller, who teaches tort law at Thomas M. Cooley Law School in Grand Rapids, said there has been a significant decline, based on his expertise in the field and conversations with lawyers.

“We underestimate the seriousness of these cases,” said Miller, who worked on both sides of personal-injury lawsuits earlier in his career. “There can be job loss and everything that follows from it. In the elderly population, falls can cause death.”

He notes that the state Supreme Court began limiting slip-and-fall lawsuits years ago. But the bar was raised even higher in July in a case involving an Upper Peninsula woman who fell and cracked a bone in her lower back while walking into a fitness club in Ironwood in 2006. Ice had formed at the entrance, although the owners insisted they had salted the sidewalk earlier that day.

The ice was “open and obvious,” and nothing forced Charlotte Hoffner to enter the club at that time, the court’s Republican majority said.

“Michigan, being above the 42nd parallel of north latitude, is prone to winter,” Chief Justice Robert Young Jr. said in a 4-3 decision. “And with winter comes snow and ice accumulations on sidewalks, parking lots, roads, and other outdoor surfaces. ... Landowners are not charged with a duty of ensuring absolutely the safety of each person who comes onto their land, even when that person is an invitee.”

Hoffner, 63, said she still occasionally uses morphine to control pain. She had to quit her job as a court clerk in Gogebic County and relies on Social Security disability payments. She still has thousands of dollars in unpaid bills.

“They were scathing, weren’t they?” Hoffner said of the Supreme Court. “It should be the club’s job to take care of a paying customer. Period.”

The court said there was nothing extraordinary about the conditions. But a dissenting justice, Michael Cavanagh, believes the majority has given a green light to property owners to ignore hazards and avoid legal responsibility.

The decision “creates an illogical and unworkable rule that will serve only to bar the courthouse doors to Michigan’s injured,” he said.

Armed with the new precedent, as well as others from the Supreme Court, the state appeals court has even more authority to swat down slip-and-fall lawsuits. Those cases have included the death of Nelson Hall, 45, who stepped into a puddle, fell and hit his head while trying to deliver a payment at a used car lot in Sturgis in 2005.

“We are skeptical as to whether an ordinary puddle in a parking lot constitutes a hazard of any kind,” judges Mark Cavanagh and Joel Hoekstra wrote Nov. 27.

Garces, who fell in an icy lot at La Providencia market in Holland, lost, too. So did Leetta Ottman, who slipped on ice outside a casino near New Buffalo.

Garces “clearly could have avoided the icy parking lot by choosing to go to a different store where the parking lot had been plowed, or by deciding to grocery shop some other time,” judges Donald Owens and Amy Ronayne Krause said Nov. 6.

Peter Kuhnmuench, director of the Insurance Institute of Michigan, a trade group for property insurers, said businesses that want customers will choose to protect their premises. But customers, he added, have a responsibility, too.